The nexus between crime and punishment has traditionally been spatial. The universally recognised territoriality principle grants every sovereign the exclusive right to investigate and punish offences committed within its borders, a rule crystallised in India under Chapter XIII of the CrPC, 1973 (now chapter XIV in BNSS, 2023).
Globalisation however, has rendered territorial boundaries porous. Enhanced mobility, digital interconnectedness, and transnational networks have normalised a phenomenon once exceptional: citizens of one state committing crimes entirely on foreign soil. To tackle this, modern legal systems recognise an exception – the extraterritorial jurisdiction. Here, the sovereign reserves its right to punish its citizens who commit a crime beyond its territorial reach, retained under section 188 of CrPC (section 208 of BNSS, 2023) in India.
Yet, exercise of such extraterritorial reach is neither absolute nor uncontroversial. A fundamental question of international comity arises: when an Indian commits an offence wholly abroad, with no nexus to India apart from his nationality, can Indian agencies assume jurisdiction unilaterally over such an offence committed within another sovereign's jurisdiction? In an era where criminal law and penal policies exhibit near-universal convergence, should not the state on whose territory the offence has been committed enjoy primacy in investigation and prosecution?
Section 188 CrPC seeks to reconcile these competing considerations. Its proviso stipulates that no such offence shall be “inquired into or tried” in India without prior sanction of the Central Government. While the provision necessitates sanction to inquire or try an offence, it is silent with regards to whether the sanction would become necessary to conduct investigation. With growing number of extraterritorial investigations by agencies, it is of primal importance to elucidate and clarify this ambiguity to ensure legal certainty and proper procedural compliance. This article answers this in affirmative, that to commence investigation of an offence committed by a citizen of India outside India, a sanction from the central government is necessary.
Scheme of section 188 CrPC
The Perpetrator, rather than the place of offence, is the determinant of jurisdiction under section 188 of CrPC. As per this view, a country has jurisdiction over its countrymen, wherever they may be, and thus hold him accountable for his actions and try him. This principle is often called as the Roman theory of criminal jurisdiction,[1] as this theory was first envisioned in Rome which held Roman citizens accountable to any misdeeds, wherever it may have occurred.
The proviso of section 188 of necessitating a sanction is grounded on three principal rationales. The first is the principle of 'Lex loci delictus', i.e. the jurisdiction is where the crime took place. So ideally, in an extraterritorial crime, it is a foreign territory which will try this offence. The second rationale is that if the trial is conducted at a place where the offence is committed, it gives a fair chance for both sides to examine witnesses and gather evidence. Third and most important rationale is to prevent double jeopardy.[2] To avoid such instances, a sanction after application of mind is necessary to be received from the concerned government.
This scenario was well explained in Karthick Theodre v. State[3] where court then said that, to avoid such instances, “parliament in its wisdom has empowered the Central government to completely analyse every facet of a case and only after its sanction can Indian Courts try the offender.”
Clearing the air around the Ajay Aggarwal judgement
While section 188 mandates requirement of a sanction, at what stage would it become necessary has been a moot. One of the most relied upon ratios in this regard is found in Ajay Aggarwal v. Union of India[4], which held that “sanction under section 188 is not a condition precedent to take cognizance of the offence.” This observation in Ajay Aggarwal is frequently cited in cases involving section 188 CrPC to argue that sanction is not a necessity until trial commences.
But this interpretation does not fully capture the Supreme Court's finding in Ajay Agarwal, which arose from the particular facts of that case. There, the primary allegation involved a conspiracy hatched in Chandigarh with the main offence occurring outside India. Because conspiracy being an independent offence in itself, which was committed within Indian territory, Indian Courts could inquire into the offence, without any embargo. Yet, to try the offence alongside the substantive offence committed outside India, sanction under section 188 CrPC was necessary.
This in fact, was implicitly clarified in Ajay Aggarwal. It said that (para 27) the decision did not disturb the ratio decidendi of previous cases of In Re Varghese[5] and Fakrullah Khan v. Emperor[6]. In those two cases, the offences were completed in themselves outside the territory of India, and it was held that prior sanction was necessary even for courts to conduct inquiry. Therefore, Ajay Agarwal must be read to mean that if the conditions of section 188 are fulfilled, namely an offence is committed by an Indian outside the territory of India, then strict adherence to the proviso is required, making the sanction a sine qua non even for the courts to conduct an inquiry.
Expanding scope of sanction to the stage of investigation
To inquire, is to apply the judicial mind. Section 2(g) of the CrPC (section 2(k) BNSS) states that “Inquiry means every inquiry other than trial conducted under this Code by a Magistrate or Court.” As held in Alim v. Taufiq[7], inquiry in criminal matters is something which stops when trial begins. So, all proceedings before framing the charge where a magistrate applies his mind, is inquiry. As Held in CP Nangia v. Omprakash Aggarwal & ors[8], where the judge acts in a judicial capacity, those acts become part of inquiry. Examples of judicial acts in judicial capacity can be found in different High Court decisions. Remand proceedings under section 167(2) of CrPC (section 187 of BNSS) (In CP Nangia and Sanoop v. state of kerala[9]), and proceedings under section 156(3) CrPC (section 175 BNSS) where court directs registration of FIR (Samarudeen v. Asst. Director of Enforcement[10]) are also inquiry proceedings, since there is an application of mind to the facts of the case by the magistrate. This indicates that investigation by an agency, and inquiry by a magistrate is simultaneous, where one activates the another.
Since section 188 CrPC's embargo applies to inquiries, it has a bearing on the investigating powers. This is because the investigating powers themselves hinge upon a court having jurisdiction to conduct inquiry. Section 156 CrPC states that any officer in charge of a police station may investigate any cognizable case which a court having jurisdiction would have power to inquire into or try under the provisions of chapter 13 of the CrPC. And as per section 2(h) of CrPC (section 2(l) BNSS), investigation includes all proceedings under the code for collection of evidence conducted by a police officer who is authorised by a magistrate on this behalf.
As offences outside India do not fall within the territorial bounds of any Indian courts, such offences cannot be investigated by the police either. Because without a sanction as per section 188 CrPC, the court's power to inquire into, is disabled. This disability is nothing but a clear lack of court's jurisdiction over the offence. The Kerala High Court in Samarudeen and Shadili v. Kandoth P. Uthaman[11] was posed with the question of whether a magistrate can order registration of FIR and investigation under s. 156(3) when offences are committed outside India. Holding in the negative, the court said that a section 156(3) proceeding being an inquiry into the offence, is restricted without a sanction. And such offences are not to be investigated by the police either. The Courts arrived at this conclusion on a conjoint reading of section 156 and section 188 of the CrPC.
While arriving at such a conclusion through a strict interpretation of the scheme of criminal procedural code is one way to necessitate a sanction to investigate extraterritorial offences, the other way would be to look at what is actually happening when investigation begins into an extraterritorial offence. Firstly, when we say extra territorial offence, an offence is committed outside India, but nonetheless it is being committed in some other jurisdiction. A jurisdiction which obviously has its own criminal justice system in place to deal with all kinds of offences. So, the said offence would have entered that criminal justice system where the crime would have been noticed and investigation begun. To initiate investigation in the parent jurisdiction where the offender is from, would in such a case only amount to putting such an individual to be prosecuted for the same offence twice, although in two different jurisdictions. This has the possibility on violating an individual's protection against double jeopardy as envisioned in article 20(2) of the Indian constitution. Secondly, as observed in Karthic Theodore the right to fair trial under article 21 of the Indian Constitution demands a fair chance to be given to an accused to be tried in a place where he too has an opportunity to gather evidence and place his defence.
So, the Central government in India which nonetheless has the power to initiate the criminal justice system into motion, is the right body to decide whether an individual should undergo a simultaneous prosecution in his parent jurisdiction, and is it necessary to thwart his fair chance at trial. Once it is satisfied that it is indeed necessary, and the central government records its decision by way of a section 188 CrPC sanction, should investigation of an extraterritorial offence commence.
Section 188 CrPC through its carefully crafted proviso, strikes a delicate balance between national sovereignty and international comity by requiring prior central government sanction before any Indian court may inquire such offences. This embargo, when read holistically extends to police power of initiating criminal proceedings and investigation. Because for want of sanction, if a magistrate cannot inquire into an offence, the logical outgrowth of the same is that even investigation cannot take place since a magistrate has no jurisdiction.
A restrictive reading, or misreading of Ajay Aggarwal that confines the sanction requirement to the trail stage undermines this balance. Requiring sanction at the root safeguards against parallel prosecutions, protects the accused's right to a fair trail at the place where offence took place, and upholds the protection of double jeopardy. It ensures that the extraterritorial jurisdiction is exercised only after deliberate governmental scrutiny, preserving both constitutional guarantees and India's credibility in the community of nations. Fidelity to the text and spirit of section 188 CrPC demands that no investigation into a purely extraterritorial offence commence without the prior sanction of Central government.
Author is an Advocate. Views Are Personal.
References:
Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 HASTINGS L.J. 1155 (1971). ↑
Sonage Vevekanand Ashok, 'Doctrine of Double Jeopardy', 4(5) International Journal of Law Management & Humanities (2021), 1282. ↑
Karthick Theodre v. State, Crl. A. (MD) 321 of 2011 (Madras High Court, Madurai Bench). (alternate citation: 2014 Cri LJ 4919). ↑
Ajay Aggarwal v. Union of India, 1993:INSC:181. ↑
In Re Varghese, (1947) 60 LW 233 (alternative citation: (1947) 1 MLJ 277). ↑
Fakrullah Khan v. Emperor, (1935) 41 LW 352. ↑
Alim v. Toufiq, Criminal Revision No. 677 of 1981 (Allahabad High Court), (Alternative citation: 1982 Cri LJ 1264). ↑
C.P Nangia, Assistant Collector Of Customs, Bombay v. Omprakash Aggarwal And Another, Criminal Application No. 2602 of 1993 (Bombay High Court), (Alternative citation: 1994 CRI LJ 2160) ↑
Sanoop v. State of Kerala, 2018:KER:16385. ↑
Samarudeen v. Asst. Director of Enforcement, O.P. No. 15432 of 1994 (High Court of Kerala), (alternate citation: 1995 Cri LJ 2825). ↑
Shadili v. Kandoth Uthaman, Crl. M.C. No. 995 of 1987 (High Court of Kerala). ↑